(Being an Appeal from the ruling and decision of Hon. E. Olwande Principal Magistrate in Limuru Magistrates Succession Cause No. 213 of 2013 delivered on 30/5/2019)
JUDGMENT
- This appeal is in respect of the estate of Mbote Kiarie (deceased). Mbote Kiarie was a brother to Mary Nyambura Mbuki (the administrator of the deceased’s estate) and respondent herein and husband to Esther Wanjiru Mbote the original appellant herein and protestor in the lower court. Esther Wanjiru Mbote is since deceased and substituted with Edith Wanjiru Mbote, who is her daughter as the current appellant.
- When the matter came up in the lower court for confirmation of grant issued to the administrator/respondent herein, Esther Wanjiru Mbote filed a protest to confirmation of grant. She alleged in her affidavit in protest that the succession proceedings had been filed by the administrator without informing her and that her signature on the consent to making the grant had been forged. Otherwise, she had also taken steps to initiate proceedings for succession of her late husband’s estate when she was served with the application for confirmation of grant in this cause.
- Esther’s prayer in the protest was that land parcel No. Lari/Bathi/360 should be registered in her names as sole beneficiary and therefore she was protesting the mode of distribution proposed by the administrator.
- In her affidavit in support of the summons for confirmation of grant the administrator listed as dependents of the deceased, Wanjiru Mbote (the original appellant herein) as widow, Mary Nyambura Mbuki (the respondent herein) as sister; Mukono Kiarie as brother and Waweru Kiarie as brother of the deceased. The administrator also deposed that the deceased was not survived by any other dependants.
- The administrator deposed that the land parcel No. Lari/Bathi/360 be shared equally among Wanjiru Mbote, Mukono Kiarie and Waweru Kiarie. I note that she is not indicated as one of the beneficiaries of the deceased’s estate. I also note that this time round the signature of Wanjiru Mbote does not appear on the consent for confirmation of grant unlike when it appeared on the consent to making the grant.
- Esther Wanjiru Mbote in her affidavit of protest deposed that the deceased was the registered owner of land parcel No. Lari/Bathi/360 and she had with him six children namely Edith Wanjiku Mbote, Nicholus Waweru Mbote, Mary Wairimu Mbote, Susan Wambui Mbote, Mary Wambui Mbote and Teresiah Wangari Mbote.
- When the matter came up for pre-trial directions on 2/11/2017, the directions given were that the matter shall proceed by way of viva voce evidence starting with the case for the Objector (should have been Protestor) and her witnesses then followed by the Petitioner (should have been Administrator) and her witnesses.
- When the matter came up for hearing on 2/10/2018 the Protestor testified and was cross-examined whereupon the court referred the matter to the chief for mediation with directions that if the parties failed to agree they shall revert back to court on 29/11/2018. Indeed the parties appeared as was directed by the court. The court then observed that the report did not indicate whether or not the parties agreed. The Protestor was also not in court. The court then directed that parties file their consent and if they were unable to agree, then each party to file an affidavit on her proposed mode of distribution giving grounds in support.
- The parties subsequently filed their respective affidavits whereupon the court made a ruling on 17/12/2018. In that ruling the court indicated that from the affidavits filed it appeared that the parties were not clear on the directions given by the court as the documents filed were not in compliance with the directions. The court therefore was unable to make a conclusive ruling on the matter. The court directed that the parties comply.
- So, the parties once again filed other affidavits after which the court made a ruling dated 30/5/2019, the subject of this appeal.
- In the ruling the learned trial magistrate found that the deceased being the eldest son to his father, it was safe to conclude that had acquired the land from his father and he was given the same to hold for himself and in trust for his other siblings and that the deceased’s siblings did not have any other parcel from their father.
- The appeal is premised on three grounds that the learned trial magistrate erred in law and in fact:
- in holding that the land was registered in the name of Mbote Kiarie (deceased) in trust of other persons noted in the confirmed grant which persons were not children in the family of the deceased.
- in holding that the subject land was family land in the larger family of the grandfather to Mbote Kiarie and his brothers while there was no evidence to that effect.
- by ordering cancellation of a title in a succession matter while such a decision ought to be taken by way of a plaint to enable parties bring forward grounds for such a cancellation.
- The court directed that the appeal be heard by way of written submissions. Only learned counsel for the appellant filed submissions. The respondent’s advocates Gachiengo Gitau & Co. did not file submissions.
- Learned counsel for the appellant reiterates the grounds set out in the memorandum of appeal. First that persons who were not children of the deceased were listed as heirs of the estate in order to get a share of the estate. Learned counsel faults the trial magistrate for arriving at her decision, based on the report from the chief which was disputed by the appellants contending that they were not given a chance to testify either before the chief or the court and therefore the report is not reliable. Secondly that the trial magistrate ordered cancellation of the title through succession proceedings which is not the correct procedure and there was no prayer for cancellation of title before the court.
- This being a first appeal, the duty of the court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. See for example Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 and Peters vs. Sunday Post Limited (1968) EA 123. (1956) E.A page 424.
- I will start with the last issue where learned counsel for the appellant submits that the learned trial magistrate ordered cancellation of the title through succession proceedings. I do not wish to touch on the verdict reached by the learned trial magistrate due to what will become clear afterwards in this judgment. However, I will dispose of that ground quickly by indicating that nowhere in the trial court’s ruling did it order cancellation of the title, the subject of these proceedings. The court only made a decision that the land be subdivided among the deceased’s family and his siblings which is a normal order of transmission in succession proceedings.
- Next is to consider how the trial court arrived at its decision, now the subject of this appeal. The court had initially given directions that the protest will be heard by way of viva voce evidence. After one witness, the Protestor’s was heard, the court decided to refer the matter for mediation before the local area chief with directions that if the parties failed to agree they shall revert to court. Indeed, it is apparent that the parties never agreed at the mediation hearing. The trial court then without reverting to the earlier directions to hear the parties by way of viva voce evidence changed to hearing by way of affidavits.
- The proceedings show that at various points the either or both parties indicated that they were not understanding the court’s directions to file affidavits. The court noted as much in its initial ruling yet went ahead and asked them to file fresh affidavits. Considering that the parties were not represented by counsel, I find that was a misdirection on the part of the learned trial magistrate. The trial court ought to have reverted to complete the hearing of the protest by way of viva voce evidence so as to give both parties equal opportunity. This is because, whereas the evidence of the Protestor had been subjected to cross-examination, that of the Administrator was not, thereby causing prejudice to the Protestor.
- The other misdirection was that even after finding that the parties failed to reach an agreement during the mediation before the chief, the learned trial magistrate went ahead to refer to the findings of the mediation. It cannot be ruled out that she was not thereby influenced by the same which she ought not to. I had opportunity to look at the proceedings of the mediation and they are illegible as some parts are clearly redacted. How the elders reached a verdict on such heavily redacted material is difficult to fathom. The learned trial court made observed in her proceedings that some parts of the mediation proceedings were not properly copied hence some parts were too faint yet went ahead to consider the decision arising therefrom. Some parts were not just faint but clearly redacted. Even after filing the decision in court, the chief kept writing letters to the court introducing issues that had not been captured in the mediation proceedings and the trial court referred to those letters in its ruling which should not have been the case. When mediation failed to arrive at an agreement, the entire mediation proceedings ought not to have been referred to at all.
- Having considered the available evidence as contained in the Record of Appeal, and having re-evaluated, re-analyzed and re- assessed the said evidence, this court finds and holds that the trial court did not have the benefit of hearing the full evidence in the matter as there was no evidence fully tendered before the learned trial magistrate to enable her reach a proper conclusion.
- For the foregoing reasons, I find that the trial court made a decision that cannot be supported in law and in fact and therefore fell into error. Consequently, the ruling dated 30/5/2019 is set aside in its entirety. It is substituted with an order that the case be remitted to the Magistrates court at Limuru for the court to proceed with hearing the protest on viva voce evidence from where it had reached and render a considered decision based on such evidence and the available affidavit evidence.
- The circumstances of this case lead me to direct that each party should bear its own costs.
- Orders accordingly.
Delivered, dated and signed at Kiambu on the Virtual Platform, Teams this 28th day of June, 2024.
< ><>><>><>><>><>><>>< ><>><>>